The Uncertain Structure of Process Review in the EU: Beyond the Debate on the CJEU’s Weiss Ruling and the German Federal Constitutional Court’s PSPP Ruling

The obligation to provide reasons (e.g. in Art. 296 TFEU) may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht (“BVG”) amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank (ECB). On the other side lies the concern with judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” (Sunstein / Vermeule) and democratic experimentalism (Sabel / Kessler)—this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review.

Legal Morality in Fullerian Jurisprudence

The American legal philosopher Lon L. Fuller profoundly advanced a sophisticated morality conception of law through his argument for thesis of Legal Morality (LM). In particular, he adumbrated a novelist idea of “ internal morality of law” that would enable the transformation of the sophisticated morality conception of law into a conception idea of law and morality connection while simultaneously providing an explanation of the new and fresh thesis of legal morality. Contrary to the common (and mostly legal positivism) view, Fuller argues that it is not only the case that the (external) morality determines what the level of any connection between law and morality, rather it is also the idea of law in itself regenerates the idea of morality (internally). However, it is argued that in spite of the fact that Fuller suggested a sophisticated account of interconnection between law and morality, he fails to develop the complexities of the (morality) connection to the law in systemic way. What does he miss in his argument of the connection between law and morality? This study will advance the view that there are more than one way to make a connection between law and morality. Some of these connections can be named here: the morality of duty, the morality of legal subject, the morality of legal official, the morality of legal end, the morality of legal content and the internal and external morality of law. This study argues that each type of these connections between law and morality importantly has many effective outcomes in term of conception and implication of law, which Fuller did not tell us. In Fuller’s work, one can grasp the soundness of this connection in a variety levels. Yet, surprisingly to Fuller’s own works, this study will show that Fuller’s thesis of legal molarity must be expanded and justified on the different ground. In doing so, this study argues not only to make sense of Fuller’s legal morality, but it also redirects the systemic way to bring all pieces of Fuller’s claim of legal morality together and to seek the rationality beyond the legal.

CommentsLon L. Fuller: Private Ordering and Mediation

One of the first major law review articles on mediation, published in 1971, Lon L. Fuller’s Mediation—Its Forms and Functions, is an important piece of dispute resolution scholarship for several reasons. While this commentary focuses upon the article’s discussion of private social ordering, Fuller’s discussion foreshadows three major dispute resolution developments. In his discussion of the negotiation process, Fuller reveals a remarkable understanding of negotiation as he explains the difficulty of timing the disclosure of information and the gains of reciprocity. Today we view this in terms of the Negotiator’s Dilemma—which Lax and Sebenius famously wrote about fifteen years later. Similarly, his discussion of mediation as a means of assisting with the dissolution of marriage presages the first use of mediation in child-custody disputes by approximately ten years. Finally, he even hints at the demise of the joint opening session in mediation when he describes the opening sessions of collective bargaining, with or without a mediator’s assistance, as serving “only a ceremonial and ritualistic purpose” (p. 322). If that’s all it’s for, why not get rid of it? As interesting as it is to find the hints of these developments, a much more integral factor in the article’s importance is Fuller’s stature as one of the preeminent legal theorists of the twentieth century. According to his biographer, Fuller was “one of the four most important American legal theorists of the last hundred years” (Summers, p. 1) and “the greatest proceduralist in the in the history of legal history” (Summers, p. 151). His jurisprudence, which formed the basis of mid-twentieth-century secular natural law, argued that the purposes of law, the internal reasoning within law, and law’s internal morality must be considered when one is engaged in legal analysis. Not only did these notions become central to “thinking like a lawyer” (Powers, p. 221), they also were to be applied to legal processes, including mediation, not solely to abstract notions of law....

Particularizing an Internal Morality of Physical Therapy

While the American Physical Therapy Association (APTA) has upheld a Code of Ethics since 1935, the philosophical underpinnings of physical therapy practice have yet to be robustly explicated. Theoretical work in the field of philosophy of medicine can be engaged to study physical therapy practice. Modifying the phenomenological and teleological framework of Edmund Pellegrino, a physician and prominent bioethicist, the purpose of this theoretical paper is to particularize Pellegrino’s philosophy of medicine to construct an internal morality of physical therapy. Acknowledging that the internal morality of health care professions is founded in the relationship between a patient and a health care professional, this paper analyzes the nature and telos, or end, of physical therapy through three phenomena of physical therapy –the fact of disability, the act of profession, and the act of physical therapy. This paper claims that, rather than medicine’s clinical truth of a good treatment decision, physical therapy’s clinical truth is a good process that capacitates patients. This relational approach to an internal morality robustly underpins a philosophy and ethics of physical therapy.

Conscientious Objection or an Internal Morality of Medicine?

Doctors, nurses, and pharmacists who refuse on grounds of conscience to participate in certain legal, expected, and standard practices have been accused of unprofessionally introducing their personal views into medicine. My first response is that they often are not engaging in conscientious objection because that involves invoking convictions external to those of the medical community. I contend that medicine, properly construed, is pathocentric, and so refusing to induce a pathology via abortion, contraception, euthanasia, etc., is actually being loyal to the internal morality of medicine. My second response is that even if such refusals are best considered conscientious objection, there is still no personal hijacking of medicine. Doctors refusing to induce pathologies need not refuse qua Christian, but can do so qua doctor. A pathocentric account of medicine provides a principled way of distinguishing conscientious objection from religious, idiosyncratic, and bigoted refusals. Patients’ refused pathology-inducing procedures are not medically harmed.

"Legality" of the Legal Order in Postwar Serbia From 1944 to 1946: Organization and Work of the Judiciary

The judiciary in Serbia is heir to a long tradition of political influence, which was particularly visible during the communist regime after World War II. Violations of the presumption of innocence, retroactive sentencing and a denial of basic human rights are just some of the features of the work of the postwar “judiciary” in Serbia, between 1944 and 1946. This paper analyzes the implications of revolutionary legislative activity, the structure and organization of the Military Court and the Court of Honor, and examines to what extent the dominant political culture, implemented through the state coercive apparatus, influenced judicial adjudication. The paper elaborates on Radbruch’s idea of “statutory lawlessness”, Fuller’s notion of “procedural natural law” and “internal morality of law” and argues that the postwar law of communist Serbia did not exercise formal and procedural justice, and cannot be called a legal system in the full sense of the word.

Presecular character of Montenegrin Law on Freedom of Religion in context of Fuller's demands for internal morality of law

The authors analyse the new Montenegrin Law on Freedom of Religion or Belief and the Legal Status of Religious Communities from two aspects: the aspect of the socio-political context of its adoption (material sources of law) and formal aspects of the provisions of the Law itself (formal source of law) in order to point out the serious imperfections of that Law. Regarding the first aspect, wider social context in Montenegro is analysed in comparison with European regulative principles of area of religious freedoms. As for the provisions of the Law itself, they are considered in the context of Fuller's theory of the internal morality of law and its 8 requirements that make law possible in order to examine in detail whether and to what extent the Law fulfils the principles of legality as a basic principle for realization of the rule of law. The conclusion of the analysis from both aspects is that the analysed Law is also full of imperfections and obviously incompatible with the values of the rule of law.

Pathocentric Health Care and a Minimal Internal Morality of Medicine

Christopher Boorse is very skeptical of there being a pathocentric internal morality of medicine. Boorse argues that doctors have always engaged in activities other than healing, and so no internal morality of medicine can provide objections to euthanasia, contraception, sterilization, and other practices not aimed at fighting pathologies. Objections to these activities have to come from outside of medicine. I first argue that Boorse fails to appreciate that such widespread practices are compatible with medicine being essentially pathocentric. Then I contend that the pathocentric essence, properly understood, does not prohibit physicians from engaging in actions that are not aimed at combating pathologies, but rather supports an internal morality of medicine that allows medical providers to refuse without penalty to engage in practices that promote pathologies.

On Pellegrino and Thomasma’s Admission of a Dilemma and Inconsistency

Edmund Pellegrino and David Thomasma’s writings have had a worldwide impact on discourse about the philosophy of medicine, professionalism, bioethics, healthcare ethics, and patients’ rights. Given their works’ importance, it is surprising that commentators have ignored their admission of an unresolved and troubling dilemma and inconsistency in their theory. The purpose of this article is to identify and state what problems worried them and to consider possible solutions. It is argued that their dilemma stems from their concerns about how to justify professional rules restricting colleagues from performing acts they view as direct, active, and formal (intentional) killings, such as physician-assisted suicide, mercy killing, and abortion. It is further argued that their inconsistency is that they both assert and deny that professional colleagues should not use their moral or theological values to impose professional restrictions on other colleagues without adequate philosophical grounds. At risk are their arguments about the nature of an internal morality for medicine, a secular and multicultural basis for medical ethics, and a nonarbitrary way to determine what acts fall outside the ends of medicine. These are arguments they claim also apply to other healthcare professions. The article begins with a brief overview of their key positions to provide the context in which they make their admission.